R.C. Lahoti, J.
(1) The plaintiff-petitioner is aggrieved by an order of the trial court rejecting its application under Order 6 Rule 17 of the Civil Procedure Code seeking an amendment in the plaint.
(2) A few dates and events are relevant. The plaintiff-petitioner is a public limited company engaged in manufacturing and marketing of certain goods. It has been enjoying electric supply made available by the respondents. On 7.6.89, the electric supply was disconnected. On 13.6,89, the plaintiff filed the present suit seeking a mandatory injunction commanding the respondents to restore supply of electricity alleging that the disconnection was malafide and without any justification. On 16.6.89, an interim relief was allowed by the court to the plaintiff-petitioner directing restoration of electric supply within five days from the date of the order subject to certain terms.
(3) In the written statement, the defendant/respondents denied all material plaint averments and submitted that the plaintiff-petitioner was illegally extracting power supply by tempering with the meter equipment of the defendant-respondent.
(4) In the month of March, 1993 (the exact date not known) the plaintiff-petitioner moved an application for amendment in the plaint whereby the plaintiff sought to seek relief of recovery of damages to the tune of Rs. 28,53, 083/94p for the loss suffered by the plaintiff-petitioner between 7/8.6.89 and 21.6.89 on account of the plaintiff-petitioner having been deprived of the electric supply by unauthorised act of disconnection by the defendants.
(5) The prayer for amendment was opposed by the defendant-respondents and has been refused by the learned trial judge forming an opinion that the amendment altered the fundamental character of the suit and sought to add a new relief which, though available to the plaintiff on the date of filing of the suit, was not sought for.
(6) Having heard the learned counsel for the parties, I am of the opinion that the rejection of the application for amendment deserves to be maintained though for reasons different from those assigned by the trial court. The relief sought to be added by way of amendment was barred by limitation on the date on which it was sought for and so could not have been allowed by the Court.
(7) Under Order 6 Rule 17 of the Cpc, the court has been vested with a discretion to allow amendment in the pleadings at any stage of the proceedings. Such amendments as may be necessary for the purpose of determining the real questions in controversy between the parties shall have to be allowed. Like all other discretions vested in a judge, a discretion to permit an amendment has also to be exercised judiciously, guided by reason and not by capris; the paramount consideration being to subserve the ends of justice. Umpteen number of precedents, a good number from the Supreme Court, laying down law on the point have by this time crystalised the principles governing the discretion of the Court as may be exercised in a variety of fact situations. The principles hardly need to be restated. I propose to refer to only such decisions as are directly in point. 7.1 In the oft-cited leading case of Piragonda Hongonda, Patil VS. Kalgonda Shidgonda Patil & Ors., , their Lordships have so stated the law:-
"All amendment ought to be allowed which satisfy the two condition (a) not working injustice to the other side, and.(b) of being necessary for the purpose of determining the rea questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defense to the claim. The ultimate test therefore still remains the same; can be amendment be allowed without injustice to the other side, or can it not?"
7.2 In K. Raheja Constructions Ltd. VS. Alliance Ministries and Ors., , a suit for permanent injunction restraining
defendants from alienating or dealing with the suit property forming subject matter of contract for sale was filed. Subsequently, relief of specific performance of contract was sought to be added by way of amendment after a lapse of 7 years, by which time the relief was barred by limitation. Their Lordships held:-
"Having allowed the period of seven years to elapse from the date of filing of the suit, and the period of limitation being three years under Article 54 of the Schedule to the limitation Act, 1963, any amendment on the grounds set out, would defeat the valuable right of limitation accrued to the respondent."
7.3 In Munni Lal VS. Orgic Ltd., a suit was filed for mere declaration without seeking consequential relief to which the plaintiff was entitled and yet he had not sought for. The suit was dismissed as being not maintainable under proviso to Section 34 of the Specific Relief Act. An application under Order 6 Rule 17 of the Cpc seeking the consequential relief by amendment of pleadings was filed in appellate Court on a date by which the suit was barred by limitation. The application was rejected. Their Lordships held:-
"The alternative relief was available to be asked for when the suit was Filed but not made. He cannot be permitted to amend the plaint after the suit was barred by limitation during the pendency of the proceeding in the appellate court or the second appellate Court."
7.4 Thus, the law is well settled that a relief cannot be allowed to be added to the plaint by moving an application for amendment on a date on which a suit seeking that relief would be barred by limitation.
(8) The learned counsel or the petitioner placed reliance on a Division Bench decision of Karnataka High Court in Sri M.R.K. Rau & Ors. VS. Corporation of the City of Bangalore wherein it is
held:- "The Court cannot refuse permission to the plaintiff to amend the plaint to include the claim for damages in a suit for perpetual injunction or mandatory injunction. Therefore, the claim for damages is inherent in a suit for perpetual injunction or mandatory injunction. Therefore, the contention that the claim for damages is barred by limitation on the date the application seeking amendment to add the claim for damages is filed, as such cannot be sustained." 8.1 The view taken by the High Court of Karnataka does not help the petitioner in as much as what was sought to be added was merely a relief alternative to the one already sought for and which relief was also inherent in the relief already sought for. In such a case the plea of limitation was redundant. The case is based on Section 40 of the Specific Relief Act, 1963 which itself casts an obligation on the Court to afford the plaintiff an opportunity of amending the plaint so as to seek relief of damages in lieu of or in addition to injunction, if not already sought for; provided that such relief of damages was just in addition to or in lieu of the relief of injunction already sought for. 8.2 The following two types of claim for damages are contemplated by Section 40 of Specific Relief Act; When asked for in substitution of : A claim for damages which the plaintiff may successfully maintain even if the relief of injunction was not asked for or abandoned by him or not allowed to him. When asked for in addition to : a claim for damages which the plaintiff cannot maintain unless the relief of injunction was also asked for. 8.3 The same wrong done and the same cause of action arising to the plaintiff may entitle him to seek relief of damages - either in addition to or in substitution of relief of injunction. To be such a claim for damages, referable to Section 40(1) of Specific Relief Act, it must satisfy twin test : (1) it is a relief of damages which the Court could have granted to the plaintiff though no- specifically asked for, in exercise of the power conferred by Order 7 Rule 7 Cpc, but for the obligation on plaintiff cast by Section 40(1), and (ii) a suit for such relief if Filed separately would have been barred under Order 2 Rule 2 CPC. Then alone the claim for damages would be hit by Section 40(2) and covered by the proviso thereto.
(9) In the case at hand the relief which is sought to be added by way of amendment is not referable to Section 40 of the Specific Relief Act. The relief of damages is not in substitution of or in addition to the relief of mandatory injunction. The cause of action in respect of mandatory injunction arose to the .plaintiff-petitioner on 7/8.6.1989. The claim for damages is referable to a period thereafter and upto 21.6.89. Thus, cause of action for damages, though referable to yet is independent of the cause of action for the mandatory injunction. The relief of damages here is not in addition to the mandatory injunction referable to the cause of action accrued on 7/8.6.89 and certainly not in lieu thereof. 9.1 The plaintiff could have Filed a suit for mandatory injunction, with or without relief of damages, on 8.6.89 itself. The damages claimed in this suit would have been the damages occasioned by the defendants' wrongful act of disconnecting the supply claimed whether in lieu of or in addition to the relief of mandatory injunction. On 22.6.89 he could have filed another suit for damages merely, for the loss occasioned to him between 8.6.89 and 21.6.89. This claim for damages would have been referable not to the cause of action arising by the wrongful act of disconnection but to the cause of action accruing de diem thereafter. The dividing line though thin is yet perceptible. The later suit would not have been thrown out merely because the relief sought for therein was not asked for in the earlier suit. Such two suits for such two reliefs are beyond the not of Section 40 of the Specific Relief Act. 9.2 Had the relief been within limitation on the date of making the application for amendment then the trial court would have certainly been obliged to allow the same for the requisite facts were already stated in the plaint. It would have been a case of seeking, an additional relief on the facts already set out in the plaint. It could not have been said that the nature of the suit was changed and even if it did change then too the amendment was necessary for avoiding implicity of the suits. But in the present fact situation it could not have been allowed because it was barred by limitation.
(10) Surender Kumar Vs. H.L.Sehgal 29(1986) Dlt Sn 10 was also cited by the learned counsel for the petitioner but that too does not help her in as much as full facts are not available from the short note. In any case, the allowing of amendment by the trial court was upheld by the High Court in peculiar and special circumstances' of that case, as the judgment itself records. A view of the law taken in peculiar and special circumstance of an individual case cannot be cited as precedent.
(11) For the foregoing reasons the revision is dismissed though without any order as to the costs.